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BENCH BLOG: Public trust doctrine wins in family feud over riparian rights

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

The Court of Appeals took a dim view of a brother’s response to his sister’s declaratory lawsuit in which she sought to affirm her riparian rights on the Sailor Creek Flowage in Price County.

His defense was that he had the right to prevent her from having a dock off her shoreline property – or even fishing or wading in the flowage waters – on the grounds that he owned the waterbed beneath the flowage.

Instead, the public trust doctrine – and therefore his sister – won the day.

Flowage property owners

The Sailor Creek Flowage was created when Sailor Creek was dammed in 1941. The landowner subsequently conveyed various parcels of her land around the flowage. One of the parcels was eventually purchased in 2006 by Gail Movrich and her husband. A dock extending from the property into the flowage was present at that time of their purchase.

Movrich’s brother, David Lobermeier, and his wife also own property on the flowage. Initially, their ownership had included dry upland property. Now, though, they own only an area of submerged land beneath the flowage’s waters.

This land constitutes just a small part of the full flowage waterbed. Part of the Lobermeiers’ submerged land abuts the Movriches’ upland waterfront property.

About five years ago Movrich and her brother had a falling out. The Lobermeiers then “began asserting that they, and they alone, have exclusive rights to the waterbed. Thereafter, they demanded that the Movriches and other neighboring property owners remove their docks and cease use of the waterbed.”

Declaratory judgment action

The Movriches sued the Lobermeiers, seeking a declaration of their riparian rights, including their ability to access the flowage from their property and have a pier or dock.

Iron County Circuit Judge Patrick Madden, sitting for the neighboring Price County Circuit Court, presided over the resulting court trial. He decided that the public trust doctrine governed the case’s outcome.

For that reason, he declared that the Movriches, as owners of shoreline property on the flowage, had riparian rights that included the right to install a dock and to access the flowage from their property.

Lobermeiers appealed, challenging Judge Madden’s reasoning that the declared riparian rights flowed from the public trust doctrine.

Court of Appeals

Even though this was a northern Wisconsin case, the appeal was assigned for decision to District 1 in southeastern Wisconsin, an affirmation that the court of appeals is a single institution.

Presiding Judge Patricia Curley penned the court’s opinion, first reviewing the public-trust doctrine and then riparian rights.

Public trust doctrine and riparian rights

The public-trust doctrine, embedded in the Wisconsin Constitution in Article IX, sec. 1, provides that Wisconsin’s navigable waters are held in trust for the public. A flowage created by damming a stream is a navigable waterway subject to the public trust doctrine.

Although a qualified title to a stream bed is given to riparian owners, the state actually maintains control of the bed pursuant to the public trust doctrine. This is true even though the state has no actual ownership of the bed.

Riparian rights, for their part, are incident to the ownership of shoreline property. “The rights of a riparian owner are not dependent upon the ownership of the soil under the water, but upon … title to the banks.”

Such rights “include the right to use the shoreline and have access to the waters, the right to reasonable use of the waters for … recreational purposes, and the right to construct a pier or similar structure in aid of navigation.”

Even so, the rights of riparian owners and private property owners do not trump the public trust doctrine.

Thus, for the Sailor Creek Flowage, a navigable artificial waterway whose waterbed is privately owned, the owner’s title to the bed is qualified and subject to the public right of navigation. The Lobermeiers agreed with this much.

“Untenable” argument

But they argued that the Movriches could not access the flowage from their property – “in other words, the Movriches cannot step from their property into the water, they cannot cast a fishing line from their property into the water, etc.”

Rather, the Lobermeiers asserted, the Movriches could only access the flowage from a public-access point, otherwise they’d be trespassing on the Lobermeiers’ waterbed property.

The court found this position “untenable.”

First, the Lobermeiers’ argument would mean that their property interests in the waterbed would trump the rights granted by the public trust doctrine. Such an interpretation would run contrary to the legal principle that the rights of property owners are subordinate to the public-trust doctrine.

Second, the Lobermeiers’ position flies in the face of “the broad and beneficent spirit” of the public trust doctrine.

The court affirmed Judge Madden by concluding that the Movriches, because of their riparian property ownership and because of the public trust doctrine, should have access to the flowage. This is true regardless of the whether the access is from their shoreline or from any dock, pier or similar structure built off of their shoreline.


This decision, while verbose, is a good review of the public trust doctrine and riparian rights. It would have benefited, however, from a more concentrated and less repetitive analysis.

The state of affairs between the brother and sister in this vigorously contested case provide an interesting window into the acrimony that can underlie civil lawsuits. It calls to mind a quote of Eric Berne, author of Games People Play. Berne maintained that sometimes games are played to such an extent that the participants end up “in surgery, in a courtroom or in the morgue.”

On another note, this was the last published opinion of Judge Patricia Curley. She is now retired after 20 years of service on the Court of Appeals.

Happy sailing.

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